Why Do We Bother with Depositions?

The image of a tv lawyer, think Perry Mason or Ben Matlock, destroying the credibility of the witness on the stand using nothing but their wits is pretty central to most people’s understanding of testimony. In those shows, the first opportunity the lawyers have to get the witness’ testimony is during trial, but the lawyers (or their investigators) had uncovered something that they could use to ambush the witness on the stand. But unlike the fictional Messrs. Mason and Matlock, most lawyers have already obtained testimony from the witness before trial, and usually, no one is surprised or ambushed by surprise revelations or undiscovered evidence. This is because lawyers who don’t practice on tv are able to avail themselves of depositions.

Depositions are sworn testimony that is taken outside the courtroom without a judge or jury is present. The testimony is recorded by a court reporter who administers the witness’s oath, to tell the truth, and creates a transcript of the proceedings. But why would any lawyer go through all that trouble of arranging for a court reporter and taking testimony before trial when they can just do it at trial? The answer is manyfold. Depositions are taken to preserve testimony, either to capture a witness’s recollections before their memory fades or because the witness will not be available to testify at trial. Sometimes depositions are taken because the lawyer is worried the witness’ story might change by the time of trial. But, most often, depositions are taken because the lawyers want to know what everyone’s testimony will be when the case finally arrives at trial. That way, the lawyer can most helpfully advise their client about the likely outcomes of the trial.

Depositions are wide-ranging and do not have limits on the number of questions that can be asked. Depositions are limited only by the requirement that they are taken in good faith and in how many hours of testimony a witness can be required to give. Under both the Federal Rules of Civil Procedure and the King County Local Civil Rules, a deposition is limited to one (1) day of seven (7) hours. However, the Court can extend that time if the deposition is impeded or delayed, and King County allows one deposition to be taken that lasts two (2) days of seven (7) hours each day. Other counties have different rules. Some have no limit on the length or number of depositions, and some do not allow depositions of persons other than parties to the litigation without prior Court approval.

Knowing the local rules of the jurisdiction and understanding the benefits and drawbacks of depositions is key to effectively using depositions to your advantage, as well as limiting the ability of the opposing party to capitalize on those same attributes of your deposition testimony.